BRegs Blog

A blog to debate the Building Control (Amendment) Regulations (BCAR): The BRegs Blog presents an opportunity for free expression of opinion on BCAR and their implementation. The blog is not representative of any professional body or organisation. Each post represents the personal opinion of that contributor and does not purport to represent the views of all contributors.

Minister Hogan explains part-deferral SI.105

by Bregs Blog admin team

Stephen-Donnelly-2 In the following Dail exchange Stephen Donnelly TD puts a number of interesting questions to Minister Phil Hogan. Principally he asks “…the rationale for deferring implementation of the Building Control (Amendment) Regulations 2014; in respect of educational and hospital projects…” We have previously posted on SI.105 here “Ghost estates and public housing: BC(A)R SI.9 no 3?” In his answer the Minister notes the timeline for SI.105: part-deferral for hospital and school projects.

  • “On 15 January 2014, the President of the RIAI wrote to me, and I understand to several other Ministers, seeking deferral of the implementation of the Regulations
  • On 5 February 2014 the Minister for Education and Skills wrote to me seeking that the planned implementation date of 1 March 2014 be deferred by at least 12 months, to ensure the planned school building programme is not put at risk
  • My Department immediately consulted with relevant Departments/ agencies … in relation to the implications of the Regulations for the public capital programme
  • Several Departments/ A gencies , including the Department of Education and Skills, the National Development Finance Agency and the Health Services Executive, expressed concerns that the new requirements may cause delays in the Public Capital Programme.
  • On this basis, the Regulations were amended to provide for an alternative but equivalent means of complying with the requirements…This alternative means of compliance applies to a limited range of public and privately owned buildings”

This sequence of events suggests Minister Hogan consulted with other departments and agencies on BC(A)R SI.9 after 5th February, following-on from the representation by Minister Ruairi Quinn.We have previously noted that Minister Quinn is an architect himself and is very well briefed on the unintended consequences of the new regulation. We wonder is SI.105 the first in a sequence of part-deferrals? We wonder, when other Ministers and departments are brought up to speed, will a series off part-deferrals be requested? Political Q+A to follow.

Link here: Building Regulations Amendments: 26 Mar 2014: Written answers

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Question Nos. 127 , 128, 129 , and 130 Chun an Aire Comhshaoil, Pobail agus Rialtais Áitiúil:

To the Minister for the Environment, Community and Local Government:               

To ask the Minister for the Environment, Community and Local Government the rationale for deferring implementation of the Building Control (Amendment) Regulations 2014; in respect of educational and hospital projects, if he will provide all data and analysis used to reach this decision; and if he will make a statement on the matter.

To ask the Minister for the Environment, Community and Local Government if he will consider deferring the implementation of the Building Control (Amendment) Regulations 2014 in respect of educational and hospital projects on all public sector projects, including social housing, art buildings, State offices and more, above and beyond educational and hospital projects; and if he will make a statement on the matter.

To ask the Minister for the Environment, Community and Local Government if he will consider extending the implementation of the Building Control (Amendment) Regulations 2014 in respect of educational and hospital projects to cover crèches, child care facilities, old peoples’ homes and convalescent homes; and if he will make a statement on the matter.

To ask the Minister for the Environment, Community and Local Government if he will consider extending the implementation of the Building Control (Amendment) Regulations 2014 in respect of educational and hospital projects to cover all publicly funded housing projects in view of the skills in local authority engineering and architecture departments and their effective management of housing construction and refurbishment projects; and if he will make a statement on the matter.

– Stephen S. Donnelly.     

 

For WRITTEN answer on Wednesday, 26th March, 2014.    Ref No s : 14231/14 , 14232/14, 14233/14 and 14234/14

REPLY    Minister for the Environment, Community and Local Government (Mr. P. Hogan)   

I propose to take Questions Nos. 127 , 128 , 129 and 130 together.    The Building Control (Amendment) Regulations 2014 came into effect on 1 March 2014 and require greater accountability in relation to compliance with Building Regulations in the form of statutory certification of design and construction, lodgement of compliance documentation, mandatory inspections during construction and validation and registration of certificates of compliance.

On 15 January 2014, t he President of the RIAI wrote to me, and I understand to several other Ministers , seeking deferral of the implementation of the Regulations. I refer to the reply given to Questions Nos. 137 and 138 dated 12 February 2014 which deals comprehensively with the concerns raised in this correspondence. On 5 February 2014 the Minister for Education and Skills wrote to me seeking that the planned implementation date of 1 March 2014 be deferred by at least 12 months, to ensure the planned school building programme is not put at risk.

My Department immediately consulted with relevant Departments/ a gencies represented on the Government Contracts Committee for Construction (GCCC) , in relation to the implications of the Regulations for the public capital programme . Several Departments/ A gencies , including the Department of Education and Skills, the National Development Finance Agency and the Health Services Executive, expressed concerns that the new requirements may cause delays in the Public Capital Programme. Large-scale public infrastructure projects, in particular, are prone to costly delays due to strict national and EU procurement rules which do not generally apply to private sector projects. Other agencies, notably the OPW, reported that the necessary arrangements were in place to administer contracts in accordance with the new requirements.

Following discussions at GCCC level, an oversight group will be established to deal with issues arising in the first twelve months of the new arrangements. This will ensure that a process is in place to signal at an early date, and resolve, any difficulties in relation to public capital programme projects and major investment projects.

On this basis, the Regulations were amended to provide for an alternative but equivalent means of complying with the requirements to assign a person to inspect and certify the works (the Assigned Certifier) in line with a plan lodged at commencement and implemented during construction. Subject to the oversight g roup’s determination of the matter, this requirement may be fulfilled by lodgement of such inspection plan, inspection records and certificates as may be deemed appropriate and necessary by the group in order to demonstrate that compliance with the Building Regulations has been achieved for the building or works concerned.

This alternative means of compliance applies to a limited range of public and   privately owned buildings classified as first – , second – or third – level places of education;   hospitals or primary care centres for which planning permission has already been obtained and for which c ontract documents will be in place before 1 November 2014 and works will commence before 1 March 2015. It does not amount to a deferral or a derogation of the requirements of the Building R egulations. The sole accommodation given is an alternative means of compliance with the inspection and certification requirements fulfilled by the Assigned Certifier that will apply to a narrow range of buildings for a temporary period .

I understand that in excess of 100 commencement notices have been lodged on the Building Control Management S ystem since 1 March 2014 suggesting that the necessary arrangements for the successful implementation of the Regulations are in place and are working effectively in practice.   In the circumstances , I am satisfied that the concerns raised did not warrant a deferral of the necessary reform of the building control system and I have no plans to broaden the scope of transitional arrangements to other public sector or privately owned projects .

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Appeal to Minister Hogan: BC(A)R SI.9

by bregs blog admin team

self-build-is-childs-play-with-buildstore

Self-builder Amanda Gallagher has written the following appeal to Minister Phil Hogan regarding the Building Control (Amendment) Regulation (SI.9 of 2014). The unintended consequences of the new building regulations on all building types, on the self-build and the farming sector in particular, are remarkable given that from a legal perspective BC(A)R SI.9 provides no additional consumer protection. Quote from Deirdre Ni Fhloinn, specialist construction lawyer and consultant at Reddy Charlton Solicitors, author of previous post “Will BC(A)R SI.9 bring any benefit to consumers?“: “There are no new legal rights or remedies for consumers created by BCAR 2014. Rather, the benefits to consumers are intended to result from improvements in the building process, such as the requirement for an assigned certifier to devise and implement an inspection plan.” Amanda Gallagher’s letter to the Minister to follow:

______________

Re: Self Builders role under SI 9

Dear Minister Hogan,

My name is Amanda Gallagher, and myself and my husband, Raymond were going to self build our new family home in Co. Sligo.  I say ‘were’ because on Saturday, March 1st last you essentially banned self building / direct labour in Ireland – by implementing the SI 9 you have taken our dream from us, our five young children were looking forward to a new life in the country – and you have erased it all. We have outgrown our 3 bed council house and were going to construct a beautiful home – at all times we would comply with the Building Regulations – including Part L – and we were open to inspections from the Building Control Authority at any stage.

Minister, the reason I write to you is that I am utterly shocked at the deplorable treatment we are receiving from you and your Department – and not only us, by the way, the entire Irish Nation.  I cannot fathom why you cannot be truthful with us Minister?   I have just seen Parliamentary Questions from yesterday, March 26th, where Stephen Donnelly questioned you about SI 105 – in your answer you state that the President of the RIAI asked you to defer the implementation of SI 9 on January 15th last.  Minister, on Friday, February 28th last, you were interviewed on RTE Radio’s Morning Ireland Programme and when you were asked about the RIAI pleading for a deferral on that day and you answered ‘I don’t know why they are coming out a day before seeking a deferral when they have been ‘on board’ for the past two years’ or words to that effect.  I knew that day when I heard that interview that you were misleading the nation – and yesterday you confirmed it.

I wrote to you on January 13th last, your Private Secretary emailed me back with this Ref.  REP4355/PH/13 and told me he would answer our questions as soon as possible – well you must be extremely busy in your Department as it is now March 27th and I am still awaiting his reply! I suppose my questions were too hard to answer – I don’t think so – one of them was: Why can a building owner not choose his ‘builders’ from a public Register of Qualified Tradesmen as opposed to your idea of a private Register of ‘competent’ Builders (CIRI).  I’m not sure if you realise, but it is not possible for a building contractor to guarantee he is ‘competent’. as the only guarantee of competence would be if a builder could show me his qualification, just like a registered nurse for example, she can guarantee me that she is competent because she has a tangible qualification in her hand, and as there is no ‘school for builders’ then i’m afraid he can’t prove he is competent. I do hope you take note of this fact before you put CIRI on a statutory footing next year, you must consider a Register of Qualified Tradesmen available to the general public at each Local Authority.  This would ensure that each man on this list would have a fair chance at employment.  You know if you need a water connection you MUST choose a Registered Contractor from the Local Authority’s List – a water connection costing approx 1,400 euro – but for a house costing approx 200,000 you are saying we MUST choose a builder, who cannot beyond any shadow of a doubt prove that he is ‘competent’- from a private Register of ‘builders’ – nonsense! Why was CIRI not made statutory before you implemented the SI 9 – because for the next year – the general public may still employ a ‘cowboy’ to construct their homes – it is the same thing as opening a restaurant without the ‘menu’ being in place? It is laughable.

Minister, the SI 9 really is the most confusing piece of legislation I have ever come across.  One of the purposes of laws is to maintain social order – well the SI 9 have all the ingredients for social unrest.  My husband sees his friend nearing completion of his beautiful self build home a few fields down from our site. Meanwhile you have put handcuffs on my husband and basically told us to stay where we are – we will never, ever be able to double our budget to have enough to employ a main Building Contractor, an Assigned Certifier and Project Supervisor – how do you think my husband feels?

We are one of 1,800 families this year alone – families who have to abandon their futures.  You made no provision for people who were in the planning process already – we had spent thousands on architects fees and site tests – have you no regard for the Citizens that you are elected to protect? I see you made provision for other Departments with the implementation of SI 105 – I must tell you Minister, that was a real ‘kick in the teeth’ to self builders.

Minister, I wouldn’t be half as upset about all of this if the SI 9 actually protected consumers in the future against the building control disasters such as Priory Hall – but they do absolutely nothing to protect anyone.  It is a scandalous sham. It is quite clear to me that the clear winners here are the CIF – i’m sure their worst nightmare would have been an Independent Building Inspectorate!

There has been alot of talk of you and the Dept. ‘clamping down’ on the black market – this is supposedly one of the reasons for the citizens having to employ a main building contractor under SI 9.  My husband pays his taxes, the USC etc.. he is a fine electrician and was going to construct our home with his blood, sweat & tears – at weekends, evenings and during his holidays – all materials would be top spec, purchased from he local builders merchants etc.. we would be employing some trades, plasterers for example – now we presume they are all tax compliant – as they presume we are. It would have also been a ‘hobby’ for my husband to build our home.  I don’t see where the black market fits in to all of this?

Surely when you talk of the black market you couldn’t be talking about plumbers doing a favour for their electrician friends and vice versa – this Minister is called ‘good will, being neighbourly, expressing charity’ surely you haven’t forgotten what these are? Why must everything revolve around money?

Minister, there has also been confusion surrounding the cost of the SI 9 to the building owner.  You say 1,000 to 3,000, I say 20,000, the actual professionals estimate nearer to mine than yours, and we could go on and on about costs till the cows come home but the actual truth is at the moment, under SI 9, anyone intending to self build will NOT FIND AN ASSIGNED CERTIFIER to work with them – therefore as you well know – self build / direct labour does not exist in Ireland anymore. This is a very sad statement  – self build does not exist in Ireland anymore.  The Irish are a nation of Self Builders, I would even go so far as to say you nor I would exist to day if our great grandfathers were told they could not build family homes.  What would our ancestors think of these restrictive laws? You would be in big trouble with them!

You may not realise the torment that the SI 9 have caused the citizens of this beautiful nation since March 1st. I do.

There are families with shattered dreams – their house plans in the bin, there are tradesmen nervous about the future – they are not ‘in’ with a main building contractor – they cannot even come up with the 738 euro to register on CIRI  – they may never work again – they are in the same boat as Draughtsmen, Architectural Technologists, Architects (who never just got on the RIAI’s Register) who have literally lost their livelihoods, there are Assigned Certifiers who have to face clients and give the ‘bad news’ of the actual cost to certify a project and have the client look at them in horror because the cost is nowhere near the minute amount you said it would cost, the same Assigned Certifiers are upset at your suggestion that some of them may try to exploit their client, there are Building Control Authority staff that can’t cope with the confusion in their office, there are Local Election Candidates getting doors slammed shut on them, there are the farming community who haven’t even began to comprehend what your after doing to them, and then there are the three professional bodies who don’t know what to tell their members in relation to self building – because they are waiting for you to make the statement first. You have done no favours for the local authority housing lists – they have just got alot longer or for the general mental health of the nation. These are no ‘wild exaggerations’ by the way – I kid you not.

Minister, no matter what you ‘say’ on Radio, via email or in the Dail regarding self building – this will not change the Law of the Land – and that Law now states that to construct a home you must be a principal or director of a building company ONLY.  We are not directors of a building company.  Minister, you really only have three options now – you either amend the wording on these certificates to include the words ‘self builder / building owner’, you make a public statement informing the nation that they CANNOT self build or you can revoke SI 9 and implement one of the other sensible solutions that have been put forward to you – a solution that would not inflict so much hurt on people.  You must stop the silly antics – too many people are affected. Remember it is always the right time to do the right thing.

I am looking forward to your reply and your reply from my original correspondence!

Regards to you at this most difficult time in Building Control,

Mrs Amanda Gallagher

Co. Sligo

New Law Society Guidance Note on BC(A)R SI.9

by Bregs Blog admin team

law-books-and-gavel

In a recent Law Society Guidance Note on BC(A)R 2014 to members a number of issues are noted concerning the Building Control (Amendment) Regulation (SI.9 of 2014). Here is a link to the Law Society Guidance note:

Update On Building Control (Amendment) Regulations 2014

In particular we note advice regarding self-builders:

  • “As mentioned above, there is as yet no Construction Industry Register. Until such a register is in place, it seems that an owner could nominate him/herself as the builder provided that he/she is prepared to say that he/she is satisfied that he/she is competent to undertake the work. A self-build owner would then have to sign the form of undertaking by the builder confirming to the Building Control Authority that he/she was competent to undertake the work concerned and further undertaking to ensure that any persons employed or engaged by him to undertake any of the works involved would be competent to undertake such works. It is unlikely that most of the people who self-build would be able to correctly say that they were competent to undertake the work. The main contribution they would be providing would be a lot of hard labour rather than expertise in building technology and they generally would rely on friends, neighbours and contacts with expertise such as electricians, block layers, plasterers, roofers, etc. to provide the necessary expertise in these specialist areas.
  • As mentioned above, it seems clear that the intention of the Department is that in due course it will only be possible for an owner to appoint a registered builder under these Regulations. It seems inevitable therefore that, from the date the register of builders is put on a statutory basis, it will no longer be possible to self-build as we know it.
  • In the meantime, however, a self-build owner will have to be willing to complete forms as indicated above and to find an architect, engineer or surveyor that is willing to undertake the task of acting as an Assigned Certifier – in most cases for a person with no experience acting as a “builder”. Doing so will clearly increase the risk for the architect, engineer or surveyor and such professionals would be best advised not to undertake such a role in this sort of situation.”

The advice note confirms self-building will end once the privately owned and operated register of builders CIRI is established on a statutory footing in March 2015. This is clearly the intention of the government and is the subject of an appeal by the IAOSB to the european ombudsman (see previous post here “Self builders escalate to europe: BC(A)R SI.9“). In the 12 months up to the introduction of a mandatory register this note suggests that whether self-builders can sign the builder’s completion form or not isn’t the main issue halting self-building this year. Rather it will be whether any members of these three professional bodies will assume certifier roles for self-build projects.

Here are other posts with legal advice, senior council opinions or views on other aspects of BC(A)R SI.9 (click on title for link):

Legal firms advice on BC(A)R SI.9

BC(A)R SI.9 and the Law Society of Ireland

Legal Perspective: consumer benefit?

Senior Council Advice on BC(A)R SI.9

 “extraordinarily loose and vague”: Legal Implications of BC(A)R SI.9

Builder’s Completion Certificate (extract of SI.9):

SI9 Builder's cert